The Jaded JD

In which people who should know better forget that the federal Constitution protects States

From Lyle Denniston at SCOTUSblog comes word of a proposal to amend the Constitution of the United States to abrogate the Supreme Court's decision in Citizens United v. FEC.  The proposed amendment would provide, among other things, that "[t]he U.S. [sic] Constitution protects only the rights of living human beings."  (Ignore the inelegance of referring to the Constitution as the "U.S. Constitution" within the document itself.)

Well, that's clearly throwing the baby out with the bathwater, because the Drafters were obviously attentive to the preservation of federalism--and the delegates to the various State ratification conventions obviously were, too--which means that the Constitution protects States' rights as well.  What mammoth ignorance of history this proposal evidences.  Either that or the proponents, which appear to include an unnamed professor at the Hofstra University School of Law (surely this individual is not tenured), are leveraging Citizens United into a much broader tool by which to finally enact the idea that the States are nothing more than the administrative subdivisions of the federal government.

Here's a reminder:  the entire sovereign power of the Kingdom of Great Britain passed upon independence to the several States, not the federal government.  The States are sovereign entities whose powers are only narrowly limited--limited comparatively slightly by the federal Constitution through the Supremacy Clause and circumscribed more substantially by their own constitutions, imposed on them by their citizens; if neither the federal Constitution nor their own constitution prohibits an action, and sovereigns were in the common law of nations entitled to do it, the States can do it within their jurisdiction.

By contrast, the federal government derives its powers from the grant of the States, or more precisely from the citizens of the several States acting through their ratification conventions (but nevertheless from the citizens of the several States rather than the citizens of the United States)--that grant was first conveyed in the Articles of Confederation, and subsequently in the Constitution of the United States.  The federal government is a sovereign of broadly limited powers--what the federal Constitution does not give, the federal government does not have.

If you subscribe to the school of thought that believes that federalism should end and that States should no longer be sovereigns--that the United States should no longer be a collection of sovereigns--that is a political issue completely distinct from and unrelated to the question of whether the First Amendment right to speech reaches a corporation's right to spend money articulating political opinions.  Conflating the two is ignorant at best, and is more likely a cynically disingenuous ploy.

2010 already portended danger for federalism, with likelihood that the Supreme Court will decide that the Necessary and Proper Clause allows Congress to enact laws without an underlying enumerated federal power (in United States v. Comstock) and that the States lack the police power to regulate firearm ownership because the Second Amendment is incorporated against them through the Fourteenth Amendment (in McDonald v. City of Chicago).  There is no need to compound what the Court will most likely do with an inartfully drafted (and ill-conceived) constitutional amendment to undo what the Court did somewhere else.

Why the "Know Campaign" is wrong

Last week, the Virginian-Pilot reported that the State Board of Elections demanded to know how a group, the Know Campaign, obtained a list of registered voters and their voting histories, which the group intended to use to create a mailing informing several hundred thousand voters of their neighbors' electoral activities.  When the group failed to comply with the SBE's demand, the SBE notified the state police, whereupon the group filed a suit in Richmond City circuit court.

Code § 24.2-405 is pretty clear about who gets access to lists of registered voters and how those lists can be used.  Based on the Virginian-Pilot report (because I haven't looked at the pleadings filed in the suit), the Know Campaign argues that it has a free speech right to distribute the lists.  That argument has nothing to do with the SBE investigation, though; the SBE wants to know how the group got the list because the SBE is the only lawful source and it apparently has no record of providing it to the Know Campaign.  So regardless of whether the Know Campaign had a constitutional right to distribute the list if it possessed the list lawfully, this free speech argument is a red herring.

First, I don't think the Know Campaign has a constitutional right to acquire the list in the first place if it is not entitled to (or did not) acquire it lawfully.  For example, I might be a political action committee interested in furthering discussion of any proposal to eliminate the state's subsidization of local personal property taxes (i.e., the car tax), which would almost certainly qualify as First Amendment speech.  But that doesn't mean the constitution requires DMV to provide me with a list of all motor vehicle registrants.  (This question is different from whether I could send my letter out to the people on the list I had already acquired, especially if I acquired it lawfully.)

Second, the real question at issue here isn't even whether the Know Campaign was entitled to get the list.  (After all, § 24.2-405(a)(vi) allows "nonprofit organizations that promote voter participation and registration" to obtain the list and use it for that purpose.  The Know Campaign argues (and apparently has a 2006 study to back itself up) that "shaming" voters into voting increases participation.  So the Know Campaign's intended distribution may well be lawful, and no constitutional question may even be presented here.)  The real question is, did the vendor that supplied the list to the Know Campaign (especially if it sold the list) violate § 24.2-405?  That is a question that the SBE is fully entitled to investigate, and the Know Campaign is obstructing that investigation.

On trying terrorists in criminal courts

The Attorney General's decision to try Khalid Shaikh Mohammed and four of his associates in the United States District Court for the Southern District of New York has, unsurprisingly, exposed a difference of opinion between the Left and Right.  The Left welcomes the trials as an affirmation of the rule of law and an end to the legal limbo in which most alleged terrorists and enemy combatants have existed for eight years.  The Right denounces the trials as weakening America, giving non-citizen terrorists the rights and privileges to which American citizens are entitled in American criminal prosecutions, providing the terrorists a platform from which to publicize their propaganda, and making New York City a target for terrorist attack (as if it hadn't been before).

The arguments on both sides share a common, implicit assumption:  that those being brought to trial are, in fact, guilty.  To the Left, this means that they cannot possibly be acquitted, and that the trials represent an opportunity for America to reclaim its pre-eminence among civilized nations for comportment with the rule of law.  "We are better than the terrorists," this argument runs, "and our system of justice is part of why our brave men and women abroad have risked, and lost, their lives defending our country.  If we treat these evil bastards any differently, the terrorists will have changed our society to make it less free, to make it less ordered by law, and they shall have, in some way, won."

To the Right, the certainty that the accused are guilty has a different meaning, which evokes an emotion that often lies not far beneath the surface in cases where most people have convinced themselves that they know who is guilty of a very public and very wicked crime:  that the guilty will go free not because the facts don't support their guilt (after all, there are enough alleged facts to have made the public certain of the accused's guilt) but that some namby-pamby, procedural, "hyper-technical," legal obstacle to conviction will result in acquittal.  (Conservatives pick and choose when it comes to legal technicalities in criminal trials, though:  the vacation on appeal of Oliver North's criminal convictions were quite welcome to conservatives despite the fact that there's very little question that North did the things he was accused of doing; he got off because prosecutors impermissibly used immunized testimony.)  But let's not kid ourselves that this emotion is real and widespread:  we saw it after O.J. Simpson was acquitted of murder; we see it now where Sam McCroskey is charged with murdering four people in Farmville.  "We know they're guilty," this argument runs, "so what's the point of giving them a chance to get off?"

My point here isn't that Khalid Shaikh Mohammed could conceivably be innocent.  My point is that both sides implicitly assume his guilt.  And that exposes the difference in the psychology of each:  the Left is certain he will be convicted--"what New York City jury doesn't convict him?" they assume--and if he is not, it will be the fault of the Bush Administration, which captured and waterboarded him, for creating the legal obstacles to his conviction.  (I suppose that some cynical people on the Left consider this a win-win, because, the way they see it, one of two evils will be tried and convicted in SDNY:  the person of Khalid Shaikh Mohammed or the detention and interrogation policies of the Bush Administration.  On some level, the Left is correct that the Right fears the latter, but the Left overstates it.)  The Right is genuinely more afraid of what happens if Mohammed does get off.  And it is the very real possibility that he may that the Left understates, and it is the consequence of an acquittal that they ignore.

All those good things that the Left believes a trial and conviction wins for America--the respect abroad, the confidence at home, the affirmation of the rule of law--is lost after an acquittal because there is simply no way the United States releases Khalid Shaikh Mohammed after such an outcome.  There will be no triumphant discharge from the custody of the United States; Khalid Shaikh Mohammed never walks down the courthouse steps to be encircled by thrusting media microphones to give an impromptu victory speech.  And whatever the United States does to continue his detention from the moment a judgment of acquittal is entered, if it be, is going to be considered (especially abroad) as an act of lawless hypocrisy.

The Left--those who don't cynically embrace the possibility of an acquittal that can be blamed on George W. Bush and his advisers--considers this outcome ridiculously implausible, and those who pause to consider it to be paranoid, but this is not going to be an easy trial.  There are a lot of authentic legal issues that have to be disposed of before the allegations are presented to a fact-finder.  (If the trial stays in New York, I'm not certain that I would advise a jury trial over a bench trial.  And the question of whether the trial does stay in New York, if raised in a motion for transfer or change of venue, is a tiny question, comparatively speaking, when one considers the much larger ones these cases will present.)  One thing, in my opinion, is certain:  I feel sorry for the district judge who is assigned this case.  The presiding judge is going to have hanging over his (or her) head the weight of public anger if he decides any of the potentially dispositive issues in favor of the defendants, regardless of the legal merits of their arguments.

And that's the real reason the Left should be a lot more tentative about this decision in favor of a criminal trial than they have been:  there's the opportunity for a hell of a lot of bad case law to come out of these trials because of the notoriety of defendants and their alleged crimes.  It is going to be very difficult for the trial judge, or the appellate courts upon review, to decide potentially dispositive arguments in the defendants' favor.  (On that count, the Left is probably right:  what federal judge lets these defendants off?)  But that could create a lot of precedent with serious consequences for later trials, both of alleged terrorists and of more mundane criminals.

(Both sides deftly avoided the risks of posing difficult questions to Judge Ellis when John Walker Lindh was charged criminally:  they pled him out.  I don't think that can happen in these cases, despite the potential risk of adverse rulings to both sides, because the Justice Department cannot take the political hit of pleading any of these cases out:  they're too high profile and, in the Right's view, should never have been pursued in the civilian system to begin with.)

Finally, there's the question of timing.  I simply don't see how these cases are finalized before the 2010 mid-term elections.  I don't even see how the prosecution can get through all the pre-trial motions before then.  That gives the Right roughly a year to criticize the decision, using each set back or postponement to fuel the fire of public disapproval.  In fact, I doubt the appeals will be through before the 2012 election, if there are convictions.  So this decision, with all of its potentially politically-fatal outcomes, pervades the remainder of President Obama's current term.

So, in reality, trying Khalid Shaikh Mohammed and his friends is much closer to a lose-lose for the Left than anything else.  I think they should be slightly less irrationally exuberant.

The impropriety of Tommy Norment

The Virginian-Pilot reports that Senate Republican Leader Tommy Norment has, since July 2008, been working for the College of William and Mary.  According to the report, he is paid a $160,000 annual salary and, during the 2009 Session, he requested a $20 million state appropriation to the college.  These facts may be of interest to people who are familiar with Delegate Phil Hamilton, another senior Republican budget conferee who reportedly accepted a $40,000 annual salary from a subsidiary that Old Dominion University created after Hamilton secured a $500,000 state appropriation for it.  Some will be happy to draw parallels between these two situations, but that is not my purpose here.  Rather, I raise a point that the Virginian-Pilot did not address (and wonder why they haven't addressed it, and urge them to augment their investigation).  The point arises from the uniqueness of the fact that Norment, unlike Hamilton, is a lawyer and that he is providing legal advice to the college.

(The college happily concedes that Norment provides legal advice to the college:

In hiring Norment, the college got a "twofer," [college President] Reveley said in an interview. On one hand, he said, the school got a veteran lawmaker who could give students a firsthand look at how the General Assembly works. The two courses Norment teaches - one in the law school and one in the government department - both deal with the legislative process.

But even more important in his mind, Reveley said, was the opportunity to tap Norment's expertise as a lawyer. Even though his contract says nothing about providing legal services, Reveley said Norment's job has evolved to include advice and consultation on a range of legal issues.

The attorney general's office provides legal counsel to state universities.

"But there are an enormous number of legal issues going on all the time for any college or university where you need somebody working on a sustained daily basis, so you develop your own inside group," Reveley said.

"The opportunity to get somebody like Norment, who is a really splendid lawyer with a lot of experience, in here helping us with those sorts of issues was quite appealing."

For a lawyer of Norment's experience, Reveley added, the salary William and Mary is paying him is "very, very reasonable. Outside an academic context, you couldn't get him for that amount of money."

Moreover, the college includes "legal counselor" among his titles in the faculty/staff directory.)

President Reveley sounds like a man proud of a frugal bargain:  he's gotten a professor and an attorney for one low price.  And the fact that Norment's salary seems market rate for a law professor, and that Norment has actually done work to earn it, does help distinguish his case from that of Hamilton. In fact, that may have impelled Reveley to disclose the legal representation--it makes Norment's employment look like a fair deal, rather than some shady, back alley quid pro quo.  But, as I said, whether the deal is fair or not may differentiate Norment from Hamilton, but it's not what I'm interested in.  (His partisan and factional adversaries will gleefully scrutinize that aspect, whether it has merit or not.)

As the Virginian-Pilot reports, the college is represented by the Office of the Attorney General.  The Attorney General's duty to represent the college is conferred by statute, which makes his representation exclusive:

All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge, including the conduct of all civil litigation in which any of them are interested, shall be rendered and performed by the Attorney General, except as provided in this chapter and except for any litigation concerning a justice or judge initiated by the Judicial Inquiry and Review Commission. No regular counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, or official. . . .

Code § 2.2-507(A) (emphasis added).

The use of outside counsel is strictly limited:

No special counsel shall be employed for or by the Governor or any state department, institution, division, commission, board, bureau, agency, entity, official, justice of the Supreme Court, or judge of any circuit court or district court except in the following cases:

1. When the Governor determines that, because of the nature of the legal service to be performed, the Attorney General's office is unable to render such service . . . .

2. In cases of legal services in civil matters to be performed for the Commonwealth, where it is impracticable or uneconomical for the Attorney General to render such service . . . .

3. In cases of legal services in civil matters to be performed for any state department, institution, division, commission, board, bureau, agency, entity, official, justice of the Supreme Court, or judge of any circuit court or district court where it is impracticable or uneconomical for the Attorney General's office to render such service . . . .

4. In cases where the Attorney General certifies to the Governor that it would be improper for the Attorney General's office to render legal services due to a conflict of interests, or that he is unable to render certain legal services . . . .

5. In cases of legal services in civil matters to be performed by the Virginia Office for Protection and Advocacy . . . .

Code § 2.2-510 (emphasis added).

So it appears that Norment is prohibited by law from providing the college legal advice--and for the college to solicit or receive it from him.  (That is not to say that doing so is criminal, only that it appears to be illegal.)  Unless the Governor or Attorney General authorizes Norment to provide the college legal advice.  And the Virginian-Pilot does not say whether either of them has; it only says that Norment sought, and then-Attorney General Bob McDonnell provided, an official opinion relating to the possibility of any conflict of interest between Norment's legislative role and his professorial role:

Before taking the job at William and Mary, Norment said, he got a written opinion from then-Attorney General Bob McDonnell, now the Republican candidate for governor, concluding that it did not constitute an impermissible conflict of interests.

. . . .

[Norment] declined to provide a copy of McDonnell's opinion. The McDonnell campaign also declined to release it, citing attorney-client privilege.

But where is the authorization required by Code § 2.2-510 to allow the college to receive legal advice from outside the Office of the Attorney General?  That document would not be privileged; it would not contain legal advice either to Norment (a client of the OAG in his official capacity as a member of the General Assembly) or to the college.  What was the basis for invoking the exception?  Did the Governor decide McDonnell was "unable to render such service?"  Was it "impracticable or uneconomical for the Attorney General to render such service?"  Was there a conflict of interest between the OAG and the college?

Now any lawyer could have fallen into this predicament; the impropriety here is separate and independent from Norment's elective office.  (This post is purposefully not entitled "The impropriety of Senator Tommy Norment.")  But I'd wager that everyone was so preoccupied with avoiding the appearance of graft that they forgot to even consider whether Norment could lawfully do what he is doing.  And that's why legislators shouldn't just avoid conflicts of interest; they should avoid undertakings that even hint of the appearance of a conflict of interest.

(Link to Virginian-Pilot via Vivian Paige.)

Update:  The Virginian-Pilot has run a new story reporting that then-Attorney General McDonnell's opinion reminded Norment that only the OAG could provide the college legal advice, and Norment disavowed any intention to do so.  If that's the case, then the only conflict here is between the college's impression of Norment's job and Norment's own impression--and the college is "back[ing] off" its earlier statement.

I'm still skeptical of any legislator's employment by a state or local government agency.  I don't think any legislator should be participating in budget decisions that affect his other employer and I doubt that holding two government jobs is what Jefferson had in mind when he referred to a part-time, citizen legislature.  But it doesn't look like Norment's conduct here violated any commonly held sense of propriety after all.  That was an open question after the Virginian-Pilot's original story, and I am glad it has been cleared up.

Two things you may not have known

Courtesy of Wired.com's story about Aaron Schwartz and the PACER affair:

1. If you live on a cul-de-sac, the FBI will not stake out your house because their cars are too conspicuous.  (I think that's a factor James Bacon and E.M. Risse ought to take into consideration when they write about land use and development.)
2. Amazon.com's user agreement allows the company to turn over everything it knows about you to the government without a subpoena.  (Another reason to buy only from Borders and Barnes & Noble, in person, and with cash.)

(Link to Wired.com via Howard.)

More on special session legislation to resolve Melendez-Diaz

In my earlier post, I surmised that a legislative fix to Virginia’s Melendez-Diaz problem may include the use of remote testimony.  I think that such a provision would be useful because forensic analysts will spend enough time out of their labs testifying without compounding the problem by making them travel to potentially far-distant locations throughout the Commonwealth to do so.  (Even from the Department of Forensic Science’s Roanoke regional lab, it is a long drive to Abingdon, for example, and I doubt we’re going to buy DFS a lot of planes or helicopters.)

In Delaware v. Fensterer, the Supreme Court held that “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose . . . infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' [sic] testimony.”  474 U.S. 15, 22 (1985).  The Court clarified, in Maryland v. Craig, that

the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case. . . .  We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process.  Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing a trial, we cannot say that such confrontation is an indispensible element of the Sixth Amendment’s guarantee of the right to confront one’s accusers.

. . . .  That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with.  [O]ur precedents confirm that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial on where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.

497 U.S. 836, 849-850 (1990) (emphasis in original) (internal citations and quotation marks omitted).

Applying Craig, the Fourth Circuit has determined that the case “plainly requires a public interest more substantial than convicting someone of a criminal offense,” United States v. Abu Ali, 528 F.3d 210, 241 (4th Cir. 2008), but the interest here isn’t assuring conviction but avoiding the cost of hiring enough forensic analysts to keep up with the demand for their analyses while permitting them to testify in court as Melendez-Diaz requires.  The Fourth Circuit also determined that Craig requires “that, absent face-to-face confrontation, the reliability of the testimony is otherwise assured.  [T]he presence of [the] other elements of confrontation—oath, cross-examination, and observation of the witness' demeanor—adequately ensure[] that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.”  Id. (internal citations and quotation marks omitted).

There’s a lot of precedent that mere inconvenience to the witness is not a substantial public interest, but here we’re talking about the cost to the state in the aggregate rather than inconvenience to the witness in an individual case—and those decisions pre-date Melendez-Diaz, too.  Because Melendez-Diaz has increased the burden on the states, the states may be given the leeway to meet that burden.  So there is a sound constitutional argument for allowing forensic analysts to testify by closed-circuit television from mini-studios in their own labs, provided that the defendant is permitted to cross-examine him.  That would save a lot of travel time for analysts and money in travel expenses.

Updated: Va. GOP scores two points (with bonus special session preview)

First, the RTD reports that it has acquired details of Governor Kaine's DNC-related travel by filing a FOIA request with the Virginia State Police, much as I suggested RPV might do.  The RTD gets the credit for actually getting the information into the public domain but RPV scores a point because the information shows Kaine spent 31 days in a four-month period (March, April, May, and June) on the road for the DNC.

Second, the RTD reports that Kaine will call a special session of the General Assembly to deal with the impact the Melendez-Diaz decision is having on state criminal prosecutions.  Obviously, Ken Cuccinelli was way out in front of the Governor and Steve Shannon, his rival in the Attorney General's race, on this issue.  While Cuccinelli was right that a legislative solution is necessary and scores a point for the Governor's coming around to his point of view, no legislative solution to cure the constitutional defect in Virginia's forensic evidence statute is going to completely avoid the choice between hiring more forensic analysts or creating a backlog in forensic cases because the Supreme Court has said the analysts must testify when defendants demand they do so, and their time on the stand is time they're not spending doing forensic analyses.

I suspect the legislative proposal will require prosecutors to notify defendants in advance that forensic evidence will be used against them at trial and provide an opportunity for the defendant to demand within a certain number of days that the forensic analyst(s) appear at trial.  I also suspect that it may provide for some sort of remote, perhaps televised testimony, either live or in pre-recorded form.  I'll have more to say about each of these possibilities when a bill is actually filed.

Update: The RTD reports that Governor Kaine has set August 19 as the date for the special session.

Two overlooked points about Melendez-Diaz

There are two points about Melendez-Diaz that haven't been given the attention they deserve based on the coverage I've seen.

I shed some light on my first point in the comments here but I think it needs more emphasis.  The principal criticism of Justice Scalia's opinion is that requiring forensic analysts to testify at trial is too hard and too expensive.  But "it's too hard!" and "it's too expensive!" are not valid legal arguments when it comes to constitutional interpretation.  When the Supreme Court handed down Gideon v. Wainwright in 1963, requiring states to provide legal counsel to all criminal defendants facing felony charges, it created a procedural shockwave that we have internalized and habituated ourselves to even though it still ripples through state budget considerations.  Gideon was and probably remains the most expensive criminal law decision ever to come out of the Supreme Court.  But we don't analyze whether Gideon was correctly decided based on how hard or how expensive it is to implement.  Nor should we analyze Melendez-Diaz on that basis:  the procedural effect is one we will internalize and habituate ourselves to, just as we now consider appointing counsel for indigent defendants to be routine; the cost we simply have to live with.

My second point is this:  conspicuously absent from the Right's criticism that Melendez-Diaz is too hard or too expensive or too pro-defendant because it lets defendants off on "a technicality" is a complaint that the decision is another judicial-activist opinion from unelected judges who don't answer to the people and ignore the real world.  I don't believe Melendez-Diaz is an activist opinion--generally, I think the term "judicial activist" and its variations are all intellectually bankrupt because they've been overused, have been made subjective and ambiguous, and have lost their meaning--but this case in particular is the natural result of Crawford, where 6 Justices joined Justice Scalia's opinion and Chief Justice Rehnquist and Justice O'Connor concurred separately.

But I suspect the reason the Right hasn't been calling Melendez-Diaz an activist opinion has more to do with who wrote it than what it says.  Had it been handed down with a 5-4 majority consisting of Justices Stevens, Souter, Ginsberg, Breyer, and Kennedy over a Scalia dissent, the Right would be howling.  The substantive criticism would have been the same:  the decision is too hard, too expensive, and too pro-defendant, but the composition of the majority would have made it judicially activist, too, because the decision is too hard, too expensive, and too pro-defendant.  And that intellectual dishonesty based on the author of an opinion, rather than its content, is why I think lay political commentary on judicial decisions is essentially worthless.

CAV affirms Workers' Comp award to widow in sham "green card" marriage

Mustal Mursaloglu and Jill Stevens married in June 2003 in what the Virginia Court of Appeals assumed to be a sham marriage intended to aid Musaloglu in obtaining permanent residency status--a green card.  The evidence could go either way.  But it doesn't matter.  Mursaloglu was killed in an industrial accident and the Workers' Compensation Commission awarded Stevens dependent benefits as his widow.  After Mursaloglu's employer and its insurer appealed, the Virginia Court of Appeals affirmed that award in an opinion issued today because, while acknowledging that sham marriages for immigration purposes are illegal conspiracies to violate federal immigration laws, the marriage itself is valid and did not violate the Commonwealth's public policy.

I have a feeling the General Assembly may decide soon that a marriage that exists solely as an instrument through which to effect immigration fraud is void as a violation of public policy.

Kaine, the DNC, RPV, and FOIA

I'm not a FOIA specialist and have never litigated under Virginia's Freedom of Information Act, and I haven't seen the specific letter here.  But based on the NBC12Blog report that Governor Tim Kaine has denied RPV's FOIA request for records pertaining to his travel for the DNC, I wonder what RPV's next steps are.

Code § 2.2-3705.7(2) clearly does exclude the working papers and correspondence of the Office of the Governor, which includes "the Governor; his chief of staff, counsel, director of policy, Cabinet Secretaries, and the Director of the Virginia Liaison Office; and those individuals to whom the Governor has delegated his authority pursuant to § 2.2-104."  And "working papers" includes "records prepared by or for an above-named public official for his personal or deliberative use."  Id.

On the other hand, Code § 2.2-3705.8(A)(ii)removes "records of the allowances or reimbursements for expenses paid to any officer" from that exclusion.  So, even though Kaine has promised the DNC will reimburse the Commonwealth for the cost of his security detail while he traveled, it seems that the promise inheres an admission that the security detail was originally paid out of his security allowance.  If that is true then I would believe the record of the dates that the security detail was paid by the Commonwealth while Kaine was out of state (and any other expenses like airfare, hotels, and meals) would be public record.

Of course, Kaine may be correct that the Executive Protection Unit of the Virginia State Police, and not the Office of the Governor, is the proper custodian of those records.  But if the Virginia State Police is the proper custodian, the records might be exempt from disclosure under Code § 2.2-3706(F)(7) because they would likely reveal how many troopers the Governor takes with him when he travels, which may qualify as a tactical plan.

So all that's clear is that nothing is clear.  If RPV wanted to prolong the political theater to invigorate the base during the summer (while normal people aren't paying attention), I suppose it could petition for mandamus under Code § 2.2-3713, which generally has to be heard with 7 days of being filed.  But would they want to?  Do they want to spend money litigating this issue in the middle of a general election?  Does it really buy them enough earned media to make it worthwhile?  (Of course, if they win, they get costs and attorney's fees but winning is not assured.)  And do they really want to put Bill Mims in the position of having to defend the Governor?  (Wouldn't that be a fun side issue for Ken Cuccinelli:  "If you were Attorney General now, would you vigorously represent Governor Tim Kaine's denial of RPV's FOIA request?")

I personally think the return isn't high enough to continue this diversion.  RPV has had its fun and now it's time to move on.  That's especially true when one considers that there's likely to be an appeal--especially if Kaine loses.  How long would that take?  Even the best case scenario takes too long.

Assume RPV files originally in the circuit court (rather than the general district court, which they may do, from where the appeal goes first to the circuit court under Code § 16.1-106) and gets a final order in time for the Supreme Court's August writ session (which is highly unlikely because the cases for August almost certainly have been docketed and sent to the Justices by now, and most certainly will have been by the time a final order issues from the Richmond circuit court).  If the petition for appeal is granted, the Rule 5:26 briefing schedule runs 80 days.  Assuming the certificate of appealability is granted that day (i.e., the date of August writ), you're at mid-November before briefing is complete.  Even if the case is heard at January oral argument--the week the new governor is sworn in--the opinion isn't handed down until late February.  And that's the best case scenario if an appeal is granted.

That timetable makes a lawsuit backfire.  Rather than merely invigorating the base during the off-season, litigation would force voters to hear about this sideshow over and over because the appeal will loom over the fall campaign.  (Remember how sick Richmonders got of Wilder suing City Council and vice versa, regardless of which side they thought had it right?)  It doesn't remain an issue for the gubernatorial candidates because Deeds merely needs to say he thinks Kaine should turn the records over and neutralize the issue, and Kaine can ignore him.  So this turns into nothing but a distraction for RPV.  I think Governor Kaine called RPV's bluff.

Melendez-Diaz could be a big deal for Virginia drug prosecutions

That's my initial impression from reading the opinion handed down this morning by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts, No. 07-591.  In Virginia, forensic evidence tested by the Department of Forensic Science is often introduced with a certificate from a forensic analyst.  For example, when a police officer seizes a quantity of what he has probable cause to believe is crack and sends it off for analysis to confirm that it is crack, DFS sends back a certified report that it is indeed crack according to their analysis.  The Commonwealth's attorney then produces the crack to the officer on the stand at trial, asks him if it is what he seized, and then introduces the forensic certificate as evidence that the stuff is crack.  Under Code § 19.2-187.1, the defendant can call the analyst to testify at trial, but that approach appears to be explicitly rejected today by the Court as constitutionally insufficient under the Sixth Amendment.

In Magruder v. Commonwealth, 275 Va. 283 (2008), the Supreme Court of Virginia determined that § 19.2-187.1 is essentially a notice-or-demand statute:  because the right to confrontation can be waived, a defendant's failure to summon the analyst to appear at trial amounts to a waiver of the right.  Although SCOTUS in Melendez-Diaz does not find notice-and-demand statutes constitutionally flawed (because they merely require the defendant to assert his Sixth Amendment right), slip op. 21-23, Melendez-Diaz does address one question the SCV did not reach in Magruder:  the order of proof.  In Magruder, the appellants argued on appeal that the statute placed the burden of producing the analyst on them.  The SCV found that burden-shifting was not part of the Confrontation Clause right but was a separate Due Process Clause question not raised at trial and therefore not preserved for appeal.  275 Va. at 301-302.  Melendez-Diaz does address that question and resolves it in favor of the criminal defendant:

[The Commonwealth] asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts.  But that power--whether pursuant to state law or the Compulsory Process Clause--is no substitute for the right of confrontation.  Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear.  Converting the prosecution's duty under the Confrontation Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused.  More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witness, not on the defendant to bring those adverse witnesses into court.  Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.

Slip op. 18-19 (internal citations omitted).

In order to bridge the gap between Melendez-Diaz and Magruder, the Virginia statute is going to have to be enforced like a pure notice-and-demand statute:  once the Commonwealth makes known to the defendant its intent to introduce the forensic report under § 19.2-187, the defendant may demand under § 19.2-187.1 that the analyst actually appear at trial.  Then the analyst will have to testify during the Commonwealth's case in chief subject to the defendant's cross-examination, rather than during the defense.  If the analyst fails to appear as ordered, Melendez-Diaz removes all doubt that the certificate may not be admitted as evidence in his absence.

While this change may appear subtle, Melendez-Diaz appears to me to make objecting to the forensic certificate a no-brainer for defense counsel.  If they object, the Commonwealth must produce the analyst at trial.  If the analyst fails to appear, the critical forensic evidence is excluded.  (How else do you prove that what's in that plastic bag is really crack and not moisture-clumped baking soda or talc?)  There's no downside, and failure to object and require the analyst's testimony at trial is likely to produce a bar complaint from your client and provide him a ground for an ineffective assistance of counsel claim in a subsequent habeas petition.  [I want to append to this statement a clarification that I don't believe either the bar complaint or the habeas petition would necessarily be justified, and that the case were it is justified would be rare, but these drug defendants often get a lot of down time in prison coupled with a lot of resentment toward trial counsel.]

In any event, I think most defense attorneys would be foolish not to use the opportunity to object and the prospect of yanking DFS analysts away from their mass spectrometers and trucking them all over the Commonwealth to strengthen defendants' bargaining position when negotiating pleas in drug cases.  "Do you really want to take this to trial?  I'm going to object to the DFS report, so you're going to have to bring in the analyst to testify."

At least that's my initial impression.

The Fourth Circuit upholds Virginia's partial-birth abortion ban

The Fourth Circuit today released its opinion in Richmond Medical Center for Women v. Herring following en banc review of a challenge to Virginia's partial-birth abortion ban.  Dividing 6-5, the en banc court upholds the state statute.

Insight into the Obama Administration's position on "Don't Ask, Don't Tell"

I chided Ben Tribbett for describing "Don't Ask, Don't Tell" as a civil rights violation because there is no right to serve in the military.  While I believe DADT is bad public policy, I don't believe it is unconstitutional, I don't think it violates civil rights, and I don't think that repealing it is going to make the United States military a fabulous pink beacon for gay men and women--to the disappointment of liberals who wish it were so and of conservatives who like pretending it will be so they can demagogue on the issue.  I think two cases reveal the Obama Administration's view of homosexuals serving in the military.

The first case is Witt v. Dep't of the Air Force, 527 F.3d 806 (9th Cir. 2008), a case decided by the Ninth Circuit over a year ago.  Major Margaret Witt, an Air Force nurse, had less than one year of service remaining until retirement when, in 2004, she was informed by her superiors "that they were initiating formal separation proceedings against her on account of her homosexuality."  As a result, she would not be eligible for promotion or retirement benefits.  In 2006, while the administration proceedings related to her discharge were pending, Witt filed suit in the Western District of Washington.  The district court dismissed the suit for failure to state a claim and in 2007 the Secretary of the Air Forced ordered Witt be discharged.  Slip op. at 5845-5848.

A three-judge panel of the Ninth Circuit determined first that Lawrence v. Texas, 539 U.S. 558 (2003), requires a governmental policy that intrudes into the liberty interest at issue to survive heightened, rather than rational basis, scrutiny.  Slip op. at 5861.  Specifically, (1) the government's interest in the issue must be important, (2) the policy must significantly further the governmental interest, and (3) the policy must be necessary to further the governmental interest.  Slip op. at 5863.  Most importantly, the panel held that the policy must survive heightened scrutiny as-applied--meaning in the specific individual's case rather than in the abstract.  Slip op. at 5864.

Therefore, while the government's interests in unit cohesion and so forth are important and DADT is necessary to and significantly furthers that interest, the Air Force must demonstrate that Witt herself undermined those governmental interests.  Because the district court dismissed Witt's case without making any factual findings about Witt's specific, individual effect on the government's interests, the panel reversed the district court's judgment dismissing her Due Process claim and remanded so the district court could conduct that fact-finding.  Slip op. at 5867.  (The panel separately affirmed the district court's judgment dismissing Witt's Equal Protection claim.  Slip op. at 5867-68.)

The Bush Administration's Justice Department filed petitions for rehearing and rehearing en banc.  On December 4, 2008, the original panel declined to rehear the case and a majority of the active judges on the Ninth Circuit decided not to grant rehearing en banc.  Witt v. Dep't of the Air Force, No. 06-35644 (9th Cir. Dec. 4, 2008) (published).  The new Obama Administration's Justice Department decided not to appeal the decision to the Supreme Court, thereby allowing it to become controlling precedent (in the Ninth Circuit anyway), which triggered a bit of an uproar in conservative circles.

I believe Justice Department's decision not to appeal exposes a glimpse of the Obama Administration's view of "Don't Ask, Don't Tell."  I believe the Obama Administration wants to reserve the right to discharge gay men and women who it actually can prove undermine unit cohesion and the like.  (As a general proposition I don't buy into the argument that openly gay members of a unit will undermine its cohesion.  Letting gay men and women serve openly hasn't disrupted unit cohesion in the militaries of our allies, and our allies' openly gay men and women haven't disrupted cohesion where our military has engaged in joint combat operations with our allies' orientationally-integrated units.)  But there are gay men and women, just as there are straight men and women, whose individual conduct does undermine unit cohesion.

For example, Air Force Captain Ricky Harvey was stationed as a chaplain at Incirlik Air Base in Turkey where he engaged in consensual gay sexual activity with two Turkish nationals--and some of the sexual activity was video-recorded, albeit apparently without Harvey's knowledge or consent.  The Turk who made the video gave it to Harvey who, unaware of the contents, gave it to a female civilian co-worker who watched it.  Harvey was ultimately convicted by court-martial of conduct unbecoming an officer.  But even if he had been acquitted, the circumstances of his case would certainly support a finding that he, individually and specifically, had undermined unit cohesion.  And the Air Force should be able to discharge him on that basis, whether he received a criminal conviction by the court-martial or not.

While I doubt Ricky Harvey is alone among indiscreet gay servicemen and women, his case is a political lightning rod and I can well understand why the Obama Administration may prefer to leave DADT on the books but to enforce it as directed by the Ninth Circuit: if the Defense Department can prove someone actually threatens his unit, he's out; otherwise, he's in.  It's a pragmatic compromise.  My only objection is that how the DOD enforces DADT is up to each president's judgment and I'd like a statutory change so that the next president doesn't enforce DADT more strictly.

A law review article waiting to be written

The ABA Journal reports that the City of Bozeman, Montana, requires its municipal job applicants not only to list the names of "any and all, current personal or business websites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc." but to provide the applicant's usernames and passwords to those sites as well.

By asking for the usernames and passwords, Bozeman goes farther than the once-controversial Obama Transition Team questionnaire for prospective Administration appointees did:  Question 58 merely asked for the URLs to sites "featur[ing] [the applicant] in either a personal or professional capacity (e.g., Facebook, My Space [sic], etc.)."  While it may be interesting to explore whether a public employer can demand waiver of the applicant's privacy interests in exchange for consideration for employment, the most interesting questions are whether Bozeman would be liable either to the applicable website or to third-party users for violations of third-party's privacy interests and whether Bozeman can require X to make himself civilly liable to others.

For example, assume X has a Facebook page and that X and Y are Facebook friends.  Assume that Y restricts access to certain information on his own Facebook page to his friends.  A, a Bozeman official, uses X's username and password to access X's Facebook account and thereby accesses Y's restricted information.  Is A, or Bozeman, liable to Y?  Is A, or Bozeman, liable to Facebook?  Suppose Facebook has a terms of service agreement prohibiting any person from using the username and password of any other person, whether that person has consented to the use or not?  (In other words, the terms of service agreement requires each person to use his own, and only his own, username and password; the use of any other person's username and password is a violation of the agreement.)  What if A has his own personal Facebook account and is therefore independently subject to Facebook's terms of service agreement?

I think both Y and Facebook have an interest in ensuring that actions putatively taken by X are in fact taken by X and not by someone pretending to be X, with or without X's consent.  Obviously X is most proximately liable (most likely for breach of contract with Facebook by sharing his username and password, if the terms of service agreement prohibits doing so), but I still wonder whether (and how) Facebook or Y could make A, or Bozeman, directly liable if not vicariously liable.  I wonder too whether the fact that Bozeman's policy likely requires X to expose himself to civil liability as a precondition for considering his employment application eclipses the issue of whether Bozeman can require X to waive any privacy interest he may have in the content of his own webpages.

Va. AG joins petition for writ of actual innocence

The RTD reports that the Office of the Attorney General "has joined in a request for a writ of actual innocence for a man convicted of a rape in Richmond[, Thomas E. Haynesworth,] that DNA shows he did not commit."    According to the article, "if approved, it would be the first writ of actual innocence granted by the justices since the procedure was made available in 2001."

Under the statute, Code § 19.2-327.2, the writ does not vacate the conviction but confers jurisdiction on the circuit court to conduct hearings and enter appropriate orders.

Quamdiu se bene gesserit

The Houston Chronicle reports that the House Judiciary Committee's Task Force on Judicial Impeachment has unanimously referred four articles of impeachment against U.S. District Judge Samuel B. Kent.  Kent pled guilty to obstructing justice during an investigation into complaints of sexual assault brought against him by court employees and was sentenced to 33 months' imprisonment.  The Chronicle had earlier reported that Kent submitted a letter of resignation but that its effective date was June 1, 2010, allowing him to receive his salary and benefits while incarcerated.  According to the Chronicle's story, Kent's lawyer (Dick DeGuerin, who also represented former House Majority Leader Tom Delay) admitted that the delay was cynically based on the assumption that Congress was too lethargic to remove him before that date anyway.  Congress appears to be disproving that assumption.

The Kent situation is an excellent opportunity to revisit the question of what "during good behaviour" means in Article III.  In 2006 Professors Saikrishna Prakash and Steven D. Smith of the University of San Diego wrote an article published in the Yale Law Journal questioning the conventional wisdom that impeachment and removal provided the exclusive method of removing a federal judge.  Prakash and Smith observed that "good behaviour" was historically tested through an action on a writ of scire facias and suggested that the writ would be a constitutionally sound method of removing naughty judges.

I've found the article's analysis largely persuasive.  While I do not agree that Congress could make removal from judicial office automatic on conviction of a felony, I believe that a writ of scire facias is a perfect mechanism to remove a federal judge convicted of a felony and whose misbehavior has been proved beyond reasonable doubt.  Congress should amend Title 28 to create a court of judicial discipline in the mold of the Foreign Intelligence Surveillance Court established by 50 U.S.C. § 1803:  the Chief Justice would appoint a number of sitting Article III judges to the court for set and non-renewable terms.  28 U.S.C. § 355(b)(2) could then be amended to allow the Judicial Conference to refer a judge convicted of a felony to the court after direct appeals of the conviction have been exhausted.  The court's review would not allow for a collateral attack on the conviction but would be a largely ministerial review of the fact of conviction, whereupon the writ would issue and the judgeship would be vacated.

This approach would merely supplement Congress's power to impeach and remove, so no Article I prerogatives would be jeopardized, and would separate partisan distractions from the consideration of the issue of good behavior.  It also reduces the presumption of bureaucratic delay, which Kent relied on when he made his resignation effective a year away.  After all, Congress used to be a part-time institution and I don't consider us lucky that Congress now sits year-round even though by doing so it can impeach and remove federal judges any time of year they're convicted.  Removing convicted federal judges by writ of scire facias is efficient, judicial rather than political, and constitutionally sound.

(Houston Chronicle story via Howard.)

Lost in the intertubes

From Howard Bashman comes this cautionary tale of federal appellate practice:  When you file a notice of appeal 4 months late, don't tell the appeals court that you never got notice of the appealable order because the trial court's electronic case filing system ("ECF") failed to email it to you.  Especially not when a forensic expert examining your office computer can determine that the first thing you did on that computer the morning after the ECF email was sent was to search the Internet for instructions on how to download your email to another computer.

American Boat Co. v. Unknown Sunken Barge, No. 08-2166 (8th Cir. June 4, 2009).